Confusion over mandatory vaccinations in South Africa

The bodies at the forefront of South Africa’s vaccine strategy are relaying mixed messages regarding the possibility of mandatory vaccinations.

Barry Schoub, the chair of the Ministerial Advisory Committee for vaccines, confirmed to the Sunday Times that they are discussing the possibility of mandatory Covid-19 jabs for specific groups of South Africans.

If this possibility were to become a reality, it would most likely affect health workers and other groups of workers who spend lots of time indoors with other people.

However, health department spokesperson Popo Maja told the Sunday Times that compulsory vaccination is “not on the table for discussion.”

This is despite the updated Consolidated Direction on Occupational Health and Safety that was published on 11 June 2021, where labour minister Thulas Nxesi said employers might implement mandatory workplace vaccination policies subject to certain guidelines.

Thulas Nxesi South African Minister of Employment and Labour
Thulas Nxesi, Minister of Labour

The mandatory vaccination debate has split the country. While some label it an infringement upon their freedom to choose, others argue that mass vaccination is key to lifting the country out of the lockdown.

Wits University vaccinology expert professor Shabir Madhi said he understands the usual apprehension towards mandatory vaccination but argues that it is necessary with Covid-19.

“There is a compelling case from a public health perspective to make vaccination mandatory, especially for individuals with a high level of engagement with others in closed settings,” he said.

“In these settings, if people choose not to be vaccinated, they should be compelled to undergo testing every three or four days at their own expense.”

He also highlighted that while vaccines do not offer complete protection against infection and transmission, the overall effect of Covid-19 would be massively reduced when the majority of the country is vaccinated.

The legal opinion

Legal firm Cliffe Dekker Hofmeyr has said that no legal restrictions stop South African businesses from enforcing compulsory vaccination policies for their workforces.

“The [Department of Labour’s] Directive has put an end to the debate as to whether a mandatory vaccination policy is legally permissible,” the law firm said.

It explained that any policies requiring mandatory vaccination would be assessed against the principle of reasonableness, meaning that the rights of employees to their bodily and religious freedoms and beliefs would be taken into account.

Business organisation Sakeliga, meanwhile, is firmly opposed to mandatory vaccinations and said it received legal advice contradicting that of Cliffe Dekker Hofmeyr.

The organisation sent an attorney’s letter to Nxesi requesting clarity on the situation.

Piet Le Roux, Sakeliga CEO

“Sakeliga supports voluntary vaccination programs in the workplace,” said Sakeliga CEO Piet Le Roux.

“No employee should, however, be obliged or can be obliged by law to undertake medical interventions against their will and outside the scope of the employment contract, and directives or policies of the Department of Labor to the contrary effect are invalid.”

Le Roux contended that Sakeliga received legal advice stating that there is no legislation that is generally applicable to allow for the violation of a person’s right to bodily integrity.

He explained to MyBroadband that companies could negotiate employment contracts with mandatory vaccinations as part of the deal, but the employee would have to agree actively to this stipulation.

Le Roux also argued that the Health Department seems to be transferring the risk of constitutional violations onto employers rather than dealing with these risks themselves.

Now read: Warning over mandatory vaccinations in South Africa

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Confusion over mandatory vaccinations in South Africa